Court of Appeal for Ontario

Date: 2018-11-09 Docket: C65111

Judges: Feldman, Roberts and Fairburn JJ.A.

In the Matter of: Errol Gonsalves

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Anita Szigeti, for the appellant
• Rebecca Schwartz, for the Attorney General of Ontario
• Michele Warner, for the Centre for Addiction and Mental Health

Heard: November 8, 2018

On appeal from: the disposition of the Ontario Review Board, dated January 16, 2018.

Reasons for Decision

[1] The appellant appeals the disposition of the Ontario Review Board ("the Board") dated January 16, 2018. He seeks a conditional discharge or, in the alternative, a new hearing.

[2] On September 21, 2017, the appellant was found not criminally responsible in relation to several serious impaired driving and assault charges against random members of the public, which occurred when he was in a manic state and under the influence of drugs and alcohol. He has since been diagnosed with Bipolar Affective Disorder and Substance Use Disorders (Alcohol and Cannabis, in remission) and has been taking mood-stabilizing and anti-psychotic medications to control the symptoms of his illnesses.

[3] This appeal arises out of unusual circumstances. Following the hearing on January 16, 2018, the Board issued its disposition that the appellant be detained at the General Forensic Unit of the Centre for Addiction and Mental Health ("CAMH"), Toronto. On March 5, 2018, the Board released its reasons in support of that disposition, only those reasons granted the appellant a conditional discharge. On March 8, 2018, the Board issued "Fresh Reasons for Disposition", containing material amendments to its earlier reasons, concluding with a detention order, as provided for in its disposition of January 16.

[4] The Attorney General and CAMH concede that, in the light of the Board's unexplained and materially conflicting sets of reasons, the January 16 disposition cannot stand, and the appeal must be allowed. They submit a new hearing is the only appropriate remedy in the unfortunate circumstances of this case.

[5] We agree that there must be a new hearing. It is understandable why the appellant feels that an injustice has been done. However, with the fluctuation between a detention order, to reasons in support of a conditional discharge, to reasons in support of the original detention order, it is impossible to know with any degree of certainty what the Board intended. This is particularly so in light of the fact that the Board did not explain how or why the different sets of reasons came to be.

[6] Time is of the essence and a new hearing must be scheduled at the earliest possible date and not more than three weeks from the day of this order. We have been advised that the appellant's annual review hearing has been scheduled for January 2019. The new hearing will not replace the annual review. At the November 2018 hearing, the parties will be permitted to lead fresh evidence post-dating the January 16, 2018 hearing, including any information required from any collateral sources.

Disposition

[7] For these reasons, the appeal is allowed. A new hearing is ordered to take place within the next three weeks before a differently constituted panel.

K. Feldman J.A. L.B. Roberts J.A. Fairburn J.A.